Canada: Legal Proceedings: Civil Or Criminal?

Last Updated: December 16 2014
Article by Loretta Merritt

Sometimes legal proceedings can be an important part of a survivor's healing journey. As a civil lawyer, I am often asked by clients whether it is better to pursue criminal charges or a civil lawsuit. I will attempt to provide an overview of civil and criminal proceedings and highlight the pros and cons of each in the context of historical abuse cases.

Criminal Prosecutions

The purpose of criminal prosecutions is to punish the criminal. The parties to the criminal case are Her Majesty the Queen (the Government) against the accused individual. The burden is on the Crown to prove beyond a reasonable doubt that the accused person has committed a crime. It is a very high burden of proof. The criminal case proceeds in two stages. First, the Court has to determine whether the defendant is "guilty" or "not guilty". The accused person can plead guilty. This is often done as part of a "plea bargain". A plea bargain occurs when the accused person agrees to plead guilty in exchange for a reduced sentence or fewer charges. If the accused pleads not-guilty, a trial is held to determine guilt. At a trial, witnesses are called, documents are marked as exhibits and ultimately the judge or jury determines whether or not the accused is guilty. If the accused is not guilty, the case ends at that point. If the accused is found guilty, in most cases, they will be convicted and then a sentencing hearing occurs. At sentencing, both the accused person and the Crown have the right to make submissions to the Court on what is the appropriate sentence. At this point, victim impact statements can be done. These statements give the victim the opportunity to tell the court how the crime has affected them. In a criminal case based on historical abuse, the Crown may request a publication ban. Such requests are often granted. Publication bans prevent publication of the victim's name or identifying information. There are no time limits for prosecuting crimes.


In criminal cases, the police conduct the investigation and the Crown conducts the prosecution all at no cost to the complainant/victim. The complainant's role is minimal, they are simply a witness for the Crown. The complainant does not need to hire his or her own lawyer. If the accused person is convicted, there can be vindication, justice, healing, closure, etc.


Because the complainant is not a party and has no right to legal representation, the complainant can feel somewhat "outside " of the process. However, we now have the Victim's Bill of Rights which includes the right to be informed to the proceedings and other rights. We also have Victim's Services Offices which offer some support services to victims going through criminal proceedings. Obviously, if there is no conviction this can be extremely invalidating for the abuse survivor. However, judges do not often find that complainants have lied, rather they are more likely to find that the high burden on the Crown of proving the case beyond a reasonable doubt has not been met.

Civil Proceedings

The purpose of a civil proceeding is to provide compensation for harm done to a plaintiff. The parties to a civil lawsuit are the individual plaintiff against the individual defendant(s) and/or institution. There is a lower burden of proof in a civil case. In a civil case the plaintiff needs only to prove their case on a "balance of probabilities", meaning more likely yes than no (i.e., 51%). This is a much lower burden of proof than in criminal cases. Like Criminal cases, Civil cases also proceed in two parts. Firstly, the court will determine liability or legal wrongdoing. If there is a prior criminal conviction it is admissible as proof that the accused person did what they were convicted of doing. It is still possible to get a finding of civil liability without a criminal conviction. This is what happened in the O.J. Simpson case. He was found non-guilty in the criminal case and liable in the civil case.

If there is an institution involved, this adds an additional liability question. Meaning, even if the plaintiff proves the abuse happened, they must also establish that the institution is liable for it. There are two ways an institution can be liable, i.e., vicarious liability and negligence. Vicarious liability is automatic liability imposed by law regardless of any wrongdoing on the part of the institution. Vicarious liability is imposed in certain cases depending on the extent to which the employment gives the perpetrator the power to abuse the child. So far, vicarious liability has been imposed in residential group home cases, residential school cases, and in church cases.

Some courts have imposed vicarious liability in public school cases, others have not. The law is still evolving in the area of vicarious liability for sexual abuse by employees. Even if there is no vicarious liability, institutions may also be liable for abuse committed by their employees if they have been negligent. Examples of institutional negligence could include failing to check references, failing to properly supervise or monitor employees, failing to respond to complaints, etc.

If liability is not found, the civil case ends there. If liability is found the Court will award damages. In civil sexual abuse cases typically damages are awarded for pain and suffering, past or future therapy costs and sometimes loss of income. In my experience, most plaintiffs bringing civil cases are not doing so just for the money. Rather, plaintiffs' goals include being heard, holding the defendant to account, a transfer/shift of blame, justice, healing, closure to name a few.

Another important difference between civil and criminal cases is that in a civil case the plaintiff must enforce his/her own judgment. If the defendant does not have sufficient money or assets to pay, a civil judgment may be worthless (i.e., you cannot get blood from a stone).

In civil cases courts will usually allow plaintiffs the right to proceed by way of pseudonym or initials. If the defendant objects to this procedure, the plaintiff may need to have expert evidence prove that he or she will be psychologically harmed if their identity is disclosed.

There are time limits for suing. The basic limitation period is two years. However, the two years will not start to run before the plaintiff turns 18 years of age. Also, in sexual assault cases, the commencement of a limitation period is postponed during any period when the plaintiff is not psychologically capable of proceeding with a civil action, i.e. not ready to address the issues. There are other exceptions to limitation periods for civil sexual assault cases.


In civil cases, the plaintiff has a great degree of control over the process, the timing of the proceedings and decision making throughout. The plaintiff is instructing his/her lawyer throughout the action. The lawyer works for plaintiff. There is also the lower burden of proof and the opportunity to be compensated for damages. .


Civil actions can be lengthy and expensive if the defendant decides to fight. Some lawyers work on contingency meaning you only pay them if they win. Civil cases can be settled at any time if both parties agree to an out of court settlement. Most sexual abuse cases are settled out of court. If an abuse survivor decides that a legal proceeding will be a constructive part of the healing process, he/she would be wise to seek the advice of a lawyer with experience litigating these types of cases.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Loretta Merritt
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions